New York Times

May 10, 2010

Reshaping Court’s Culture, a Woman at a Time

By MARK LEIBOVICH
WASHINGTON — In her confirmation hearings before the Senate Judiciary Committee in 1993, Judge Ruth Bader Ginsburg predicted that she would eventually be one of “three, four, perhaps even more women on the high court bench.”

It took 17 years, a step back (Justice Sandra Day O’Connor was succeeded by Samuel A. Alito Jr. in 2006) and a good bit of public frustration voiced by Justice. O’Connor, Justice Ginsburg and others.

But President Obama’s nomination of Solicitor General Elena Kagan on Monday to succeed the retiring Justice John Paul Stevens — following his nomination of Judge Sonia Sotomayor last year to succeed Justice David H. Souter — means there could now be three women on the court for the first time in history.

It was a benchmark that women’s law groups celebrated as a major step toward a sex parity that has eluded the United States Supreme Court compared with the highest courts of several states and countries.

“Even when you had two women, there was still a sense that they were exceptions to the rule,” said Marcia Greenberger, the co-president of the National Women’s Law Center.

That notion, Ms. Greenberger added, was reinforced by how frequently legal advocates would confuse Justices O’Connor and Ginsburg, “even though they did not look anything alike.”

Justice O’Connor, who in 1981 made history when she joined the Scotus, or Supreme Court of the United States, referred jokingly to herself by the mouthful moniker of “Fwotsc” (or “First Woman of the Supreme Court”) in a 1983 letter to the editor of The New York Times.

Justices Ginsburg, Sotomayor and O’Connor declined to comment Monday.

Among court watchers and women’s judicial advocates, the significance of Ms. Kagan’s nomination can be boiled down to basic math: in a small and rarefied population of nine, the difference between two and three women can make a significant impact on the culture of the court.

“Any practitioner of diversity will tell you that you can’t bring in a few token people and get a real diversity of viewpoint,” said Pamela Harris, the executive director of the Supreme Court Institute at the Georgetown Law Center.

Ms. Harris said having three women on the court could also be a powerful “optic” that could potentially change the makeup of the lawyers who argue before it.

“If clients are visualizing the court as a predominantly male entity, they are going to want a lawyer who looks like the people on the bench,” she said. “I think this could also be a critical moment in terms of women arguing before the Supreme Court.”